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People v. Dismuke

NOVEMBER 4, 1970.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CURLISS DISMUKE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding.

MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

The defendant, Curliss Dismuke, was indicted for the crime of rape, waived jury trial and was found guilty by the court. A motion for a new trial was denied, and he was sentenced to serve from ten to fifteen years in the penitentiary. This appeal followed.

The testimony of the complaining witness and her husband related to the following events: On the morning of May 10, 1969, at about 3:15 A.M., they were awakened by the bark of their dog. The husband looked up and saw a person advancing toward their bed, who asked for money. He was given two or three dollars, which the complaining witness took from her clothing. The husband was then led by the intruder to a bathroom where a light was burning, and was asked to, and did, turn off the light. The two then proceeded to the kitchen where a light was burning. The intruder asked the husband to turn off that light, and in so doing, the husband inadvertently switched on the overhead light in the kitchen. This light remained on about a half a minute after which time he turned it off at the intruder's command. During this time, the husband looked directly at the intruder.

The two men then proceeded back toward the bedroom. The intruder then asked the husband to turn on the bathroom light, which partially illuminated the bedroom. He did so, and thus got another view of the intruder, who then ordered the husband to get back into bed. The intruder then said that he thought he would kill the husband because he was a "cop." The complaining witness said "no," and became hysterical; the intruder told her to "shut up."

The complaining witness and her husband were then ordered to undress, which they did; they were then told to pull down the bed covers, which they did, and the intruder then told the husband to "eat her." Thereupon, the husband "more or less crawled on the bed." The intruder remarked, "You're not doing that right, get up and get back of the bed." During this time the intruder was standing next to the bed and was closely watching the complaining witness and her husband. Before the husband could rise from the bed, the intruder remarked, "Would you go ahead and fuck her now." The husband stated that he couldn't, and the intruder then ordered him to get behind the bed, and pushed the bed up against him so that he could not move.

The intruder then proceeded to rape the complaining witness, all the while holding a gun close to her head. The husband was able to see what was happening in a bedroom mirror. The intruder then led the complaining witness, who was nude, from the bedroom and told the husband not to move or he would kill her. The intruder left the house with her and released her a short distance away. He then fled.

On May 31, after the defendant's arrest, the complaining witness and her husband were taken to view a police lineup. They both identified the defendant as the intruder, and later made in-court identifications of him.

The defendant testified, and denied that he was the intruder who broke into the home of the complaining witness and raped her. He stated that he was at home from 12:15 A.M. until 8:00 A.M. on the morning in question, and that his home was about one block from that of the complaining witness. His wife testified as an alibi witness on his behalf, and he offered credible witnesses as to his truth and veracity.

On this appeal the defendant contends: (1) that there was insufficient identification evidence to sustain a conviction; (2) that certain evidence regarding the identification of the defendant was improperly admitted; (3) that testimony regarding the defendant's ownership of the gun was improperly admitted; (4) that the trial judge unduly restricted the defendant's cross-examination of prosecution witnesses, and in so doing assumed the role of an advocate on behalf of the prosecution; and (5) that the defendant's reputation for truth and veracity, along with his alibi, was sufficient to raise a reasonable doubt as to his guilt.

• 1 With reference to the first two of the defendant's contentions, he was identified by the complaining witness and her husband at the trial and at a police lineup on May 31, 1970. At the time of the lineup, which took place the day of his arrest and before his indictment, no attorney represented him. At the trial, the complaining witness and her husband testified relative to the lineup, and each of them then identified the defendant. The defendant here contends that the absence of counsel at the lineup, rendered inadmissible the testimony of the complaining witness and her husband regarding the lineup.

• 2 This contention is without merit. A pre-indictment lineup has been held by our courts not to be such a critical stage of the proceedings as to entitle the accused to the presence of a counsel. (People v. Palmer (1969), 41 Ill.2d 571, 572, 573, 574.) The testimony regarding this lineup is admissible unless the methods employed by the State were so flagrantly unfair as to deprive the defendant of due process of law. (People v. Palmer, supra 573.) No pretrial motions were made in this case concerning the lineup procedure, and the record does not indicate any conduct detrimental to the defendant in the conduct of the lineup.

• 3, 4 Further identification testimony was elicited by the prosecution and admitted over objection of the defense. This testimony concerned conversations, that the complaining witness and her husband had with a police artist, from which a sketch of the defendant was prepared. The sketch itself was clearly inadmissible, and the trial court properly sustained an objection to its introduction. (People v. Turner (1968), 91 Ill. App.2d 436, 444.) However, we do not believe that the testimony regarding the preparation of the drawing improperly influenced the court to accept the identification of the defendant by the complaining witness and her husband.

On the issue of the sufficiency of the identification, the defendant claims that the complaining witness and her husband had not given adequate details in their description of the intruder, and that the discrepancies in their ...


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